It is Brexit (5) - European Council 28th June 2016 (with UK) and 29th (without UK)

Here are the "conclusions" of the European Council meeting held on 28th June 2016 attended by the Prime Minister -  Conclusions.   The conclusions succinctly state:

IV. OUTCOME OF THE UK REFERENDUM

23. The UK Prime Minister informed the European Council about the outcome of the referendum in the UK.

The post-meeting remarks of the European Council President, Mr Donald Tusk,.  The following was part of the remarks:

It is Brexit (4) ~ Legal consequences

The Civil Litigation Brief  website has numerous articles on Brexit: The Legal Consequences.  Several subject areas are addressed including Article 50 and legal arguments about the process of Brexit. 

28th June 2016

• The UK Constitutional Law Association Brexit, the Referendum and the UK Parliament: Some questions about Sovereignty. 
• Legal Business The referendum now poses a serious threat to Parliamentary Sovereignty. 

It is Brexit (3) - The role of Parliament under Article 50

About a week before the referendum I met with a few friends and discussed the possibility that the UK would actually vote to leave the EU and I posted the outcome of that discussion - UK and the EU (11) - The event horizon approaches - What if it is Brexit.  We tried to envisage how things might go after such a referendum result and sought to identify some of the legal questions that would arise.

Now that the decision of the referendum is to leave, many of those questions are receiving some serious attention including the all-important notification (under TEU Art 50) of a "decision in accordance with constitutional requirements" to withdraw from the EU.

A key question is what amounts to such a "decision" because without such a decision there is nothing to notify.

Article 50:

Article 50(1) of the Treaty on European Union (TEU) is worded in a simple way -  "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."   If a State decides to leave then Article 50(2) requires the State to notify the European Council of its intention.

The Chagos Islands

On Wednesday 29th June the Supreme Court will hand down judgment in R (Bancoult - No.2 v Secretary of State for Foreign and Commonwealth Affairs) - (2015 UKSC 0021).  The appellant, Mr Louis Olivier Bancoult, seeks to overturn a 2008 judicial decision of the House of Lords.

The British Indian Ocean Territory (Constitution) Order 2004 was made, using prerogative powers, by the Privy Council.  Section 9 of the Order was challenged by way of judicial review in the High Court (Hooper LJ and Cresswell J) and that court held it to be invalid.  Section 9 removed any right of abode for the Chagossian people (and for any others) in the Chagos Islands.   The Court of Appeal (Civil Division) - Sir Anthony Clarke MR, Waller and Sedley LJJ - affirmed the High Court's decision.   The House of Lords reversed the decision by a 3 to 2 majority and held section 9 to be valid.  Lords Hoffman, Rodger and Carswell were the majority and Lords Bingham and Mance were in the minority.

Interestingly,

It is Brexit (2) ~ A short note on developments since Thursday 23rd June.

A short note on some of the developments since the Referendum on 23rd June.

1. The European Council has issued this statement - Statement by the EU leaders and the Netherlands Presidency on the outcome of the UK referendum.

"We now expect the United Kingdom government to give effect to this decision of the British people as soon as possible, however painful that process may be. Any delay would unnecessarily prolong uncertainty. We have rules to deal with this in an orderly way. Article 50 of the Treaty on European Union sets out the procedure to be followed if a Member State decides to leave the European Union.

It is BREXIT (1) - The overall vote was to leave the EU

The United Kingdom referendum on EU membership resulted in a LEAVE vote of 17,410,742 (51.9%) and a Remain vote of 16,141,241 (48.1%) - see Electoral Commission and Telegraph for full details.  The turnout was 72.2%

Scotland and Northern Ireland both voted overwhelmingly for the UK to Remain in the EU.  The implications of this will become apparent over the next few weeks. Even though the question put to voters was whether the UNITED KINGDOM should remain or leave, there can be no doubt that voters in Scotland and Northern Ireland would have been voting for what they perceived to be in the best interests of those nations.

The Prime Minister will resign in the early autumn- Prime Minister's Statement 24th June.  That does not automatically result in a General Election.  In law, the government is Her Majesty's Government and, formally, HM The Queen appoints the Prime Minister though in doing so she will act within constitutional conventions.

The formal process of leaving under the Treaty on European Union Article 50 will not begin until a new Prime Minister is in place.  Mr Cameron said -

Ellie Butler

On 28th October 2013, Ellie Butler (age 6) was murdered by her father Ben Butler - BBC News 22nd June 2016.

On 21st June, Ellie's parents - Ben Butler and Jennie Gray - were sentenced at the Central Criminal Court - see the Sentencing Remarks of Mr Justice Wilkie.   Ben Butler was sentenced to life imprisonment for murder and the judge fixed his minimum term at 23 years (less days on remand).  He also received 5 years for Child Cruelty.  Those sentences will run concurrently.  Jennie Gray was sentenced to 18 months imprisonment for Child Cruelty and 24 months for Perverting the Course of Justice.  Her sentences are consecutive.

UK and the EU (12) - Final post of this series

On Thursday 23rd June, the United Kingdom will make its decision in the EU Referendum: Remain or Leave.  This series of 12 posts and an earlier post (Brexit ~ referendum ~ a few points) are my attempt to present factual information to assist with what is undoubtedly a most difficult decision about the future of our nation.

I spent a considerable amount of midnight oil writing a longer piece setting out my view and the reasons for it.  It was an interesting exercise but it also led me to the conclusion that it is not the role of a law blog to seek to persuade anyone to vote one way or the other.  I have therefore settled for setting down the links to the main official information issued by government and Parliament as well as links to the earlier posts in this series.

Above all, cast your vote.  As Abraham Lincoln said - "Elections belong to the people. It's their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters.”

For my own part, principally because of the likely economic impact of Brexit, I will vote to remain.  The EU is far from perfect but the issue before us is very complex and a vote to leave will have massive economic and political consequences.  For instance, the EU is highly unlikely to be willing to offer the UK the same access to the single market that it enjoys as a full member.  That could result in profound and adverse impact on business in the UK and future trading arrangements may take years to establish.  There are also likely to be serious consequences in other areas such as the fight against terrorism and crime with an international dimension.  In the event of a Leave vote, much will depend on future negotiations as to what kind of arrangement is achievable.  Politically, depending on the outcome, it could call into question the very future of the United Kingdom as a "Union" of England, Wales, Scotland and Northern Ireland.  Regarding Ireland, would a customs border between Northern Ireland (out of EU) and the Republic of Ireland (in the EU) be acceptable?  Almost certainly not!  Given the common trading arrangements across this border, the imposition border controls will have the potential to destabilise the Northern Ireland "peace process" based on the 1998 "Good Friday Agreement."  [See BBC News August 2019].

The referendum has some serious flaws.  For example, there is no requirement in the EU (Referendum) Act 2015 for there to be a pro-Brexit majority in each of England, Wales, Scotland and Northern Ireland - (i.e. the constituent parts of the UK). Thus, a simple majority will decide the issue and the result - either way - could be very close and that would lead to serious division in the UK.

There are further likely problems with the Article 50 process by which the UK will leave - if that is the decision.  Article 50 is not, in my view, well-drafted and has never been tested.  Just one such question is whether a notification of leaving can be unilaterally withdrawn.  Better understanding of this process is certainly required before committing the UK to it.

The question on the ballot paper seeks to reduce this entire complex question to a simple binary "in or out" vote and places no controls over how Ministers might go about withdrawing the UK from the EU.  There are no questions about the form that leaving might take.  Will there be an agreement for the future relationship and, if so, what form will it take.  What would be the consequences if such an agreement is not reached?

A further question exists as to the role of Parliament in the event of a leave vote.  The referendum outcome cannot be binding in law because the Referendum Act does not even try to make it so.  Action by Parliament to implement the outcome therefore seems to be necessary and that raises deep questions about whether Parliament should act independently and make its own decision or merely rubber stamp a referendum leave vote.  Referendums cut across both the sovereignty of Parliament and UK's tradition of representative democracy.


The main official information:

The Baronetcy of Pringle of Stichill ~ Reference under Judicial Committee Act 1833 s.4

Updated 20th June:

On Monday 20th June, the Judicial Committee of the Privy Council will give its advice to Her Majesty in the Pringle Baronetcy reference - see Judicial Committee website.  On the 10th of November 2014, HM The Queen made a reference to the Judicial Committee of the Privy Council under section 4 of the Judicial Committee Act 1833 so as to obtain the Opinion of the Committee as to which of the Applicant (Norman Murray Pringle) or Respondent (Simon Robert Pringle) should be entered on the Official Roll of the Baronetage in respect of the Baronetcy of Stichill.

Previous post 14th October 2015.

The Judicial Committee of the Privy Council has advised Her Majesty that Norman Murray should be enrolled as the Baronet - Judgment (PDF) and Press summary (PDF)

Inquests - legal aid for families

An amendment to the Policing and Crime Bill aimed at getting parity of representation for families at inquests failed in the House of Commons on 13th June.

At the end of the debate Mr Andy Burnham MP said - "It is disappointing that the Government were not even able to accept the principle that we should have equal funding. It would have been a step forward if they had been able to do so. I understand that they are asking Bishop James Jones to look at these matters, but of course, this issue goes much broader than Hillsborough. It is about fairness in our criminal justice system, and I believe that the Government are missing an opportunity by not acting on it quickly. Quite frankly, it is obscene for police forces to continue to spend large amounts of money on hiring aggressive lawyers to challenge families in the way that they do at inquests. This scandal should not be allowed to continue, and we in the Opposition will continue to fight against it until there is real change.​"

The full debate is HERE and the voting for individual members is HERE.   The new clause 63 (now defeated) is set out below.  It would have made funding for legal representation dependent on a recommendation by the Police and Crime Commissioner for the Police Force under investigation.  This would hardly have been seen as satisfactory.

UK and the EU (11) - The event horizon approaches - What if it is Brexit

Event Horizon

Suppose that the outcome of the EU Referendum is Leave.  The UK will then start its journey along Brexit Road - a road without any detailed road map.  This post takes a somewhat speculative look at some of the matters that might arise along the way.  First of all, a couple of points of law:

1.   The referendum result does NOT bind the UK government or Parliament in law.  There is nothing in this Referendum Act (or elsewhere) to require - as a matter of law - the government or Parliament to either do anything at all or to do any particular thing.  For further discussion on this point see the article by David Allen Green in the Financial Times (£) - Can the UK government legally disregard a vote for Brexit?

2.   The Treaty on European Union (TEU) Article 50  sets out the ground rules for withdrawal.  Art 50(1) - "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

So, what are the constitutional requirements in the UK?  Since this referendum result will not, in domestic law, bind the government or Parliament it would seem that Parliament ought to somehow endorse the result.  Unless that is done there may not actually be a "Decision" for the purposes of Article 50.

The formal process set out in Article 50 does not begin until the British government gives notice to the European Council.  The notice would trigger everything including the 2 year (possibly extendable) timescale as set out in the Article - see Art 50(3).  Precisely what constitutes "notice to the European Council" seems not to be specified but it probably requires a formal communique of some sort from the British government to the European Council President.

Lord Judge ~ Ceding power to the Executive

Most members of the public would be surprised to learn that Parliament frequently hands to Ministers massive powers to make legislation.  The outcome is an enormous volume of material and that is, in itself, a cause for concern.  Whilst Parliament exercises some controls over this "Ministerial legislation" it is more often than not quite minimal.  Even more concern arises from the insertion of Henry VIII provisions into many Acts of Parliament.  Here is a brief look at the issue.

Henry VIII clauses:

The Childcare Act 2016 is, by any standards, a very short Act with a mere 8 sections.  The Act requires the Secretary of State to secure free of charge childcare for qualifying children of working parents for, or for a period equivalent to, 30 hours in each of 38 weeks in any year.  

To enable the Minister to do this he is given extensive powers to make "Regulations" and those regulations may, amongst other things, amend, repeal or revoke any provision made by or under an Act (whenever passed or made).

EU Referendum - Voter Registration - A nightmare of a paper chase!

I had planned to do a walk today: fresh air and exercise and all that.  Unfortunately, the weather turned dull with bouts of heavy rain so I abandoned the idea of the walk.  I suppose that I could have found something better to do but I ended up delving into the law behind Voter Registration for the EU Referendum.  Get a life I hear you say!  OK - but it demonstrated what an absolute mess our statute law is in.

It is now over 14 years since Lord Justice Laws expressed dismay in the "Metric Martyrs" case about the "nightmare of a paper chase" involved in weights and measures legislation.  He was dealing with criminal offences relating to how vegetables were weighed out for customers and said - "I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation."

The same could be said of Voter Registration.  I will try to demonstrate - as briefly as possible - why.

Extending the Voter registration deadline

Update 10th June:  The Regulations were approved by both Houses of Parliament on 9th June.  It seems likely that House of Commons will examine further the problems that arose.  See The Regulations - "made" at 6.29 pm on Thursday 9th June.  Somewhat in excess of 400,000 people were added to the electoral register over 8th and 9th June.

Original post:

Here is a link to the draft Regulations which are to be put to Parliament for approval today (9th June) - The European Union Referendum (Voter Registration) Regulations 2016.   See also House of Commons - Debate on Voter Registration Regulations.


The power to make these Regulations is stated to be - sections 4(1) and (5), 9(5) and 11(1) of the European Union Referendum Act 2015.

The reason for the extension (from midnight Tuesday 7th June to midnight Thursday 9th June) is that the computer system handling registrations was unable to cope with late demand on Tuesday evening - BBC News 8th June.

Convoluted law-making:

Justice Committee - The Magistracy (2)

The House of Commons Justice Committee is conducting an Inquiry into the Role of the Magistracy and has concluded its evidence sessions.  The first of those sessions was covered in an earlier post on 24th March - Justice Committee - The Magistracy. 

A second session was held on 10th May and this took evidence from six Magistrates.   The final session was held on 7th June 2016 with evidence from the Magistrates' Association; the Senior Presiding Judge (Lord Justice Fulford) and the Chief Magistrate (Mr Howard Riddle) and, finally, from the Parliamentary Under-Secretary of State at the Ministry of Justice (Mr Shailesh Vara MP).

UK and the EU (10) - What if it is Brexit?

There is little doubt that the present House of Commons has more MPs in favour of remaining in the European Union (EU) than leaving it.  So, bearing in mind that this is a referendum of the whole of the United Kingdom, what might happen in Parliament if a majority of voters vote to leave (i.e. Brexit)?  Lots of possibilities might arise and much recent media comment has focused on the majority in the House of Commons trying to force the government to keep Britain inside the EU single market - BBC News 6th June 2016.

If Brexit takes place, a number of alternative arrangements are possible - see Alternatives to membership: possible models for the UK outside the EU - (a document required by the Referendum Act 2015 and issued by the government). 

Deepcut

Update - Addendum 6th June 2016 

Privates Sean Benton (died June 1995) - Cheryl James (died November 1995) - Geoff Gray (died September 2001) - James Collinson (died March 2002).  They were all at Deepcut Barracks and all died from gunshots - BBC News 1st February 2016.

The website Deepcut The Truth has the following about each of the soldiers - Sean Benton (5 wounds to his chest) - Cheryl Jones (a gunshot to the head) - Geoff Gray (two gunshots to the head) - James Collinson - (a gunshot to the head).

An inquest into the death of Cheryl James has just ended. 

General Election 2015 ~ Thanet South and allegations of unlawful electoral expenses

The General Election 2015 resulted in a Conservative government and it has a working majority in the House of Commons of 17 - (State of Parties).  This was rather a surprise at the time since the majority of political commentators expected the outcome to be a "hung Parliament" with the possibility of a further coalition government.  As with all General Elections there were some notable political casualties including the UK Independence Party Leader Mr Nigel Farage who lost his seat to Conservative Mr Craig Mackinlay.

The Daily Mail 1st June 2016 reported the decision of District Judge (Magistrates' Courts) Barron at Folkestone Magistrates' Court granting the Kent Police a further 12 months to investigate allegations relating to undeclared, or improperly declared, election expenses in Thanet South during the 2015 General Election.  It appears that several other Police Forces are investigating allegations of a similar nature.  Here are some media reports of the court's decision:

Isle of Thanet Gazette 1st June 2016

The Guardian 1st June - Judge grants extension to police investigation ....  

Daily Mail 1st June - Kent Police given more time to investigate Tory electoral fraud claims

The Telegraph 1st June

5 Essex Court have stated that Dijen Basu QC is to advise the Police in their investigation into the election expenses allegations:-

"The allegations centre on the Conservative Party’s Battlebus2015 campaign, where activists were bussed into key marginals in order to campaign in the 2015 General Election. The constituencies concerned include South Thanet, where Nigel Farage was defeated by the conservative candidate. The Battlebus2015 visited 29 constituencies and the Government’s working majority in the House of Commons is only 17."

Expenses limits:

A few items of legal interest

Whilst the impending EU referendum is dominating the news, here are some other items of interest.

1) Excellent BBC Law in Action on history of crimes against humanity and genocide as international crimes. By Joshua Rozenberg.

2) Julie Hambleton - The Justice Gap - The hierarchy of justice: why Yewtree but not the Birmingham bombings?  .... and, it seems, New Inquests have been ordered.    Video - Birmingham pub bombings: Inquests reopened.   For a view that this can only lead to heartache see the article by Chris Mullin - The Guardian 1st June 2016 

My post of 26th November 2014 - The Birmingham Pub Bombings 1974 - another day that should live in criminal infamy.  In that post I looked at the case, the trial, the Royal Commission on Criminal Justice, various improvements to the law but cautioned against any complacency that miscarriages of justice cannot occur today.

See also the website Justiceforthe21

In McCaughey [2011] UKSC 20 the UK Supreme Court held (by a 6:1 majority) that, a Coroner holding an inquest must comply with the procedural obligation under Article 2 of the European Convention on Human Rights.  This applies even where the death occurred prior to the coming into force of the Human Rights Act 1998 (i.e. 2nd October 2000).  The McCaughey case arose from death in 1990 at the hands of British Forces in Northern Ireland.

On the Coroner's decision to resume the inquests see the article by Nageena Khalique QC 1st June 2016. The coroner held that the power to resume the inquest was preserved notwithstanding the changes in legislation between 1974 and 2016. It was held that the inquests were suspended and the requisite power to resume the inquest was preserved by paragraph 8, Schedule 1 of the CJA 2009.

3) The Round-up: Criminal justice close to breaking point - UK Human Rights blog 31st May.

4) Michael Gove's new advisory panel on how to improve the Criminal Justice System - Law Society Gazette 28th May.

5) The secret family courts narrative has a lot to answer for - John Bolch on the Marilyn Stowe blog

6) Here is a useful website by Scoop It! covering Children in Law

7) The Guardian - The conviction of Hissène Habré: Africa points the way